Good intentions can make bad laws

Published November 22. 2013 12:01AM

When the Connecticut General Assembly passed a law forbidding the public release of crime scene photographs and 911 recordings in its final hours last June, only four legislators voted against it. But there were indications that even the majority may have realized it had done some damage to Connecticut's justice system.

The law, aimed at protecting the privacy of the families of the 20 children and six educators murdered by a lone gunman at the Sandy Hook Elementary School, prohibits public access to not only photographs and recordings from these murders but to all future murder scenes as well.

By suppressing evidence of a terrible crime, among the most terrible in our state's long history, the legislature was giving its endorsement to cloaking all future serious crimes in secrecy. It proved once again the foolishness of making a law to fit an incident.

But the governor, law enforcement officials and legislators may have been a bit uneasy about the law they crafted and passed without public knowledge or participation. They saw to it that the same legislation established a task force "to consider and make recommendations regarding the balance between victim privacy under the Freedom of Information Act and the public's right to know."

If they weren't certain they hadn't abused the right to know, why did they immediately raise the possibility with the task force? But then, why did they also make the task force top heavy with privacy advocates?

Unfortunately, the task force they created now appears to be unable to cope with the task.

In part, at least, this is because those establishing the task force stacked the deck in favor of not just privacy, but secrecy in privacy's name. Those on the task force inclined to sacrifice transparency in the name of privacy far outnumber the appointees concerned about the public's right to know.

Two appointments to the task force were made by the governor, four by legislative leaders, one each by the chief state's attorney and chief public defender, one by the deans of three state law schools, one by the commissioner of Emergency Services and Public Protection, one by the Freedom of Information Commission, one by the open-government advocacy group Connecticut Council on Freedom of Information and four by the Connecticut Society of Professional Journalists.

Gov. Dannel P. Malloy was authorized to appoint a representative of municipal law enforcement and a victim's advocate and selected two victims' advocates, one of them also employed by municipal law enforcement. The state's victim advocate selected himself, bringing the number representing that viewpoint to three of 17.

Four legislators, all of whom had voted for the law, were named to the task force. Their selection may have been justified because only four in both houses had voted against the law but given the unfortunate, secretive manner in which the law was passed, it would have been valuable to see the legislative opposition provided a voice on the task force.

These appointments resulted in a task force composed of one nonaligned member (a professor of constitutional law, named by the law school deans), six advocates of the right to know, mainly from the media and 10 aligned, to greater or lesser degrees, with governmental organizations with an inclination to keep unpleasant or inconvenient information private. The danger in trying to protect the public from unpleasant truths, and victims from further trauma, is that in the process government agencies can be protected from their mistakes. The opportunity to learn and improve upon those mistakes is lost.

In extreme cases rules designed in the name of protecting victims can instead cover up corruption and negligence.

Facing an end of the year deadline, the task force has made little progress toward its stated goal of reconciling legitimate privacy needs with the crucial need for open government. After several months of bickering, it hasn't come close to tackling the core issues and there is concern that it will not, with probably two or three meetings to go.

If the task force fails in its mission, we will be left with a bad law that will be hard to repair, given the sympathies that the Newtown families engender. Limiting information about the circumstances under which people are killed and how the threat to those people was handled is a dangerous step and does not align with the principles of a free society.